The UK Environmental Law Association aims to make the law work for a better environment and to improve understanding and awareness of environmental law. UKELA’s members are involved in the practice, study or formulation of Environmental Law in the UK and the European Union. It attracts both lawyers and non-lawyers and has a broad membership from the private and public sectors.

UKELA prepares advice to government with the help of its specialist working parties, covering a range of environmental law topics. This response has been prepared with the help of the water working party.

UKELA’s current priorities include:

  • Informing and actively influencing the broad law and policy debate on climate change including the measures to reduce greenhouse gas emissions and manage their impacts at the international, EU and domestic level
  • Helping deliver more effective and efficient environmental regulation including enforcement at the EU and UK level, not lower standards nor less regulation unless the same or better outcomes will be achieved

UKELA works on a UK basis and seeks to ensure that best legislation and practice are achieved across the devolved jurisdictions.

Comments on Defra/Welsh Assembly Government Consultation on Water Protection Zones/Work Notice Powers

  1. Damage to controlled waters

The water protection zone power in section 93 of the Water Resources Act 1991 (WRA 1991) and the works notice powers in sections 161 and 161A of the WRA 1991 are extended by the draft regulations to cover ‘damage to controlled waters’.

There are two key problems with the current approach:

  • The defined term ‘controlled waters’does not cover the physical features of rivers and watercourses below the freshwater limit nor does it cover the physical coastline.

In general the term ‘controlled waters’ refers to the liquid substance water and not to the geographical features containing water. It only includes the bed, banks and channels of rivers and watercourses above the freshwater limit because section 104 (2) expressly provides that it does so. As such ‘damage to controlled waters’ cannot encompass physical changes to the banks, beds and channels of rivers and watercourses below the freshwater limit nor to the coastline.

By way of solution, the SI could make it clear that beds/banks of estuaries and the coastline are covered for the purposes of these provisions, so that works notices/WPZs are capable of controlling this kind of hydromorphological damage.

  • The term ‘damage’ is undefined and it is unclear what it means or how it will be measured. We are aware from the difficulties and complexities that have been encountered in relation to defining ‘damage’ for the purposes of implementation of the Environmental Liability Directive that this is an extremely difficult term to establish a meaningful definition for.

There needs to, at the least, be guidance on the meaning of ‘damage’ in the context of the draft regulations.

The two points above give rise to concern as to the adequacy of the power as currently drafted.

  1. Works notice powers – exemptions for consented activities

The revised sections 161 (5) and 161A (8) provide that the EA may not exercise its power to carry out works and may not serve a works notice where damage or discharge is in pursuance of a consent given under Chapter ll or Part lll of the WRA 1991.

Sections 161 (5) and 161A (8) will need to be extended to prevent exercise of the EA’s power in relation to activities impacting on hydromorphology that have been authorised by the EA or another regulator.

For example:

Abstraction and impounding licences, land drainage consents, consents for removal of deposits, FEPA licences, consents under the Coast Protection Act and Wildlife and Countryside Act.

The EA should also be prevented from exercising works notice powers where a person is acting in accordance with another notice served by the EA or other regulator e.g. a notice under section 107 of WRA 1991 or section 25 of LDA 1991.

  1. Approach

Consideration could be given to the concept (as in the Netherlands) for farmer co-operatives with joint responsibility for the management of local sub-catchment areas as WPZs. Some financial/technology/training support would be needed and consideration could be given to how WPZs could be incorporated within the CAP cross compliance (GAEC) single farm payment scheme. Experience (e.g. from ECSFDI) is emerging from a range of stakeholders suggesting that integrating WPZ objectives with the SPS or vice versa might be feasible. There is a need to develop a single scheme/mechanism for managing/funding farmers’ engagement in environmental protection and conservation activities/measures. This could be achieved by one of two approaches; either GAEC requirements could be geared up to deliver WPZ objectives (therefore no need for a WPZ Order) or operating under a WPZ Order automatically qualifies for normal or even increased GAEC payment.

  1. Draft Guidance

There needs to be a clearer explanation of the range of catchment/sub-catchment sizes to which WPZs could be applied (and how the administrative and compliance resource needed will be proportionate to size (especially in the period for consultation).

The guidance promotes flexibility and this is to be encouraged, but delivering flexibility is difficult and inevitably resources restrict what can be done in practice. Some indication as to what flexible might mean is needed. Firstly, some evidence or expert opinion as to the minimum size of a WPZ that can deliver the expected outcomes (e.g. a single field, a single farm, a ‘small’ sub-catchment, a whole river basin). Secondly an indication of what the process will look like in order that potential actors can feel comfortable with it. Some proportionality between effort and size of WPZ is needed.

In Para 7.5, it is unclear why provision for enforcement notices needs to be made in a WPZ Order given that, at first blush, works notices would seem sufficient. There appears to be a risk here of confusion or unnecessary duplication of powers. Guidance on the circumstances in which specific provision for enforcement notices should be made in a WPZ Order, rather than reliance on works notices to enforce (para 7.5 of the guidance) would provide policy clarity.

Something more tailored than the current EA policy on prosecution and enforcement in the guidance would be helpful to indicate to the regulated under what circumstances works notices and/or prosecution would be invoked. This will help the actors involved to adopt a more pro-active/preventative approach.